R v ASA, 2023 ABCJ 210

In the Alberta Court of Justice Citation: R v ASA, 2023 ABCJ 210 Date: 20230929 Docket: 210279725P1 Registry: Calgary Between: HIS MAJESTY THE KING - and - ASA Decision of the Honourable Justice W.J. Cummings Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. The Charges [ 1 ] All

section numbers referred in these reasons refer to sections of the Criminal Code of Canada . [ 2 ] ASA (the accused named on the information) stands charged on a 3- count information alleging three separate offences occurred in Calgary, as follows: [ 3 ] On count 1, that on or about the 7 th day of January 2021 he unlawfully committed a sexual assault upon a named female complainant, contrary to

section 271. [ 4 ] On count 2, that between the 5 th and the 8 th day of January 2021 inclusive, he knowingly uttered, conveyed or caused the same female complainant to receive a threat to cause death or bodily harm to that complainant, contrary to

section 264.1 (1) (A). [ 5 ] On count 3, that between the 5th and 8th day of January 2021 inclusive, he unlawfully assaulted the same female complainant contrary to

section 266. The Participants and Conduct of the Trial

[ 6 ] There is a continuing ban on publication to preserve the identity of the female complaint named in all three counts on the information. To remain complaint with that ban, I will refer to that person as “the complainant” and will refer to ASA as “the accused” throughout. [ 7 ] ASA’s counsel, Mr. Ly has been assisted by Mr. Ma, student- at- law. [ 8 ] The Crown, represented by Ms.

Wells, called 2 witnesses, the complainant and Calgary Police Constable Matthew Daley who I may refer to as “the Constable”. [ 9 ] The entirety of these proceedings was translated from the English language to Arabic through the services of a separate Arabic interpreter. ASA also elected to testify in his own defence. That same interpreter translated the entirety of his testimony from Arabic to English. [ 10 ] The complainant speaks and can read the English language. She testified in English but was supported by a separate Arabic interpreter who provided her with limited

interpretation from English to Arabic upon her request. [ 11 ] To facilitate the need for translation, the Court’s intention is that English version of this written judgment will be read into the record following its release in open court, which will be accompanied by a continuous translation from the English language to Arabic. Agreed Facts [ 12 ] The parties agreed to the following admission, that is the Constable took photos of the complainant on Saturday January 9 th , 2021, at 9:20 AM at 2440 47th St. SE Calgary, a location which I shall refer to throughout as “the residence”.

Preliminary Findings of Fact [ 13 ] I find the following as matters of fact where the evidence is not in dispute. [ 14 ] The complainant was about 32 years of age at times material to these events, and the accused, about 31. The complainant was born in Iraq, moved to Syria at an early age and met the accused in Syria in 2011. She came to Canada with her parents in May of 2013. She became a Canadian citizen at the end of 2017. [ 15 ] She and the accused married in Sudan in September of 2018. She came to Canada to sponsor the accused’s entry to Canada.

The accused arrived in Canada in November of 2019 and on his arrival, moved into the residence. The residence was owned and occupied by the complainant’s mother and father and was also occupied by the complainant and her brother.

The complainant’s parents resided in a separate room upstairs and her brother in a room downstairs. [ 16 ] At times material to these events, the complainant and the accused were married, were in a domestic relationship and resided together in a separate upstairs bedroom within the residence. [ 17 ] The Constable was an on-duty Calgary Police Officer at all material times, including when he attended the residence in the late afternoon of January 8, 2021, when he found the complainant alone in a corner in her bedroom.

She was animated, seemed terrified, panicked, and distraught, was making fragmented statements, and was screaming. The constable was concerned about her medical condition and called EMS. [ 18 ] The Constable saw no injuries on the complainant at the time of their meeting but received photos of the complainant by cell phone on January 10 as had been requested by a female forensics officer who had attended with the complainant to document her injuries. [ 19 ] The Constable received a phone call from the accused’s boss after the meeting and attended the boss’s residence.

The accused was there at the time, was not aggressive or argumentative, seemed to understand and was co-operative. [ 20 ] The following is synopsis of portions of other relevant evidence. The Complainant’s Evidence In examination- in-chief the complainant testified as follows: [ 21 ] On January 7, 2021, the accused returned to their residence between 5:30 and 7 PM while the complainant was preparing food. They were discussing their future goals. The accused told her would like to open his own business. She told him he would have to learn English and have some job experience. When questioned by Ms.

Wells about the accused getting angry, she testified as follows: “Yes, So, at that time I don’t know what happened, he just turned like a monster against me, and he be very anger at me and he (indiscernible) with a couple of - - of tea and lighter. At that time, I was so shocked about his behaviour against me, and he squeezed my arm very hardly and hit me in the wall. Also, my head is hit against the wall” [1] [ 22 ] While she and the accused were in their room, the accused told her that if they were alone, he would divide her body into two parts.

He wasn't shouting at the time but his face and body language terrified her.

[ 23 ] She remembers him saying the following: Q: Ms. Wells: “Did he say anything to you that you remember?” A: The Witness: “At the - - yes, he say that, If we were alone I would divide your body into two parts” Q: Ms. Wells: “He said, If we were alone I would divide your body” A: The Witness: “Yeah” Q: Ms. Wells: “--into two parts?” A: The Witness: "--two parts.

And at the time, he assaulted me sexually.” [2] [ 24 ] Her mother, father and brother were not in the complainant’s and accused’s bedroom at the time of the assault but were located in other parts of the residence. [ 25 ] The accused assaulted her first by holding both her arms very hard and by the bicep area of her left arm from her shoulder down. Her left arm was affected more. [ 26 ] He then pushed her against the wall. She was terrified. She went to the corner of her bed. [ 27 ] He took her pants and her underwear off. She tried to prevent him by trying to kick him, but he was stronger than she was.

He tried to spread her legs. [ 28 ] He had his hand in the area of her neck, throat, mouth, chin and lips at the point he was able to get pants and underwear off. She was in shock and couldn’t remember what hands he used. He used very strong force, she couldn’t prevent him, he was like a monster. [ 29 ] He squeezed her thigh very hard, spread her legs apart and put his mouth and finger on her “sensitive area”. He left a bruise on her thigh when he separated her thighs. [ 30 ] She was laying on her back on the bed at the time.

He came on top of her and put his head into her sensitive area while he was on his knees. [ 31 ] Before spreading her legs, he pushed her causing her to move backward to the corner of the bed causing her to hit the back of her head on the wall. [ 32 ] She didn't say anything because she was afraid of him knowing he had threatened her before. [ 33 ] She described how he contacted what she termed her “sensitive area”. [ 34 ] When he took her pants and underwear off, he put his mouth and finger on her vagina.

He licked her vagina with his mouth and put his finger in and out of her vagina. [ 35 ] She went from the bedroom to the bathroom. She was crying. She didn’t know whether she should tell her family or call the police. He had threatened her and her family before. She was afraid to tell her family. [ 36 ] She went to her parents pretending she was fine. He went to sleep but she didn’t sleep.

She was afraid of him and thought he may do something with her. [ 37 ] The next morning (which on her evidence, would have been September 8,) she was in the kitchen taking medication for pain from the assault when he came from behind her and tried to push her, first saying he pushed her on the sink. She pushed him back and ran into her room, locked the door and stayed there until around 2 PM. She heard him lock the door on his way out to work. [ 38 ] She thought she was in danger and later that same day, January 8 she called police sometime after 4 or 5 PM.

The constable arrived at her house the same day. [ 39 ] She sustained injuries as a result of her husband’s actions on January 7 and 8 as follows: a bruise on her left upper arm, her right thigh, and scratches to the left side of the upper part of her back. [ 40 ] She had none of the bruising prior to January 7 or 8 and doesn’t know how long it took for the bruises to heal. [ 41 ] The 6 photos marked as Exhibit 1 were taken by police on January 9 th at the residence and accurately show her injuries on January 9.

The photos on Pages 2, 3 and 4 of the Exhibit show the same bruise located on her left arm in the area of her bicep between her shoulder and elbow. [ 42 ] Before anything happened on the bed, the accused pushed her against the wall, she turned, and he tried to catch and grab her. She went to her knees to protect herself. [ 43 ] Photo number 5 show marks on the upper left-hand area of her back. The complainant explained the accused was trying to follow and catch her in the bedroom and tried to pinch or grab her and made contact with her back. [ 44 ] She was wearing pants and a light top with straps at the time.

[ 45 ] The photos shown in Exhibit 2 were taken by the complainant’s brother after those taken by the Constable after he requested she wait 3 to 5 days before taking any photos. She followed the Constables instructions and had her brother take these photos within that time span. [ 46 ] Photo 1 shows bruising on her left arm between her elbow and shoulder, photo 2, bruising on her left shoulder blade. Photos 4,5,6,7 and 8 show closeups of large discolored, jagged shaped, bruise on her right thigh.

These all occurred as a result of the accused assaulting her on January 7 and accurately depict her injuries 3 to 5 days after she incurred them. In cross examination , the complainant testified as follows: [ 47 ] She provided a statement to police at her residence regarding her allegations around January 10, about 3 days after the alleged assault. No one helped her write it, nor did she under or over-state the circumstances. [ 48 ] She both speaks and can read the English language.

She wrote everything in her statement before she sent it to police. [ 49 ] She denies the accused didn’t say that if they were alone together, he would divide her body into two parts. She knew with certainty he said this, he threatened her and denies he may have said something similar, but not those exact words . She knows this is exactly what he said, that is, he would like to divide her body into two parts. [ 50 ] This happened in the bedroom they shared where they would normally sleep together.

Her parents were in the living room when she went into her room with the accused, but she didn’t open the door to look for them and didn’t know where they were. [ 51 ] At the time of these events, she and the accused were sharing the room and were sleeping in the same room together.

She denies she had moved into her mother's bedroom to sleep for at least six months prior to the events. [ 52 ] She also denied the accused did not throw a cup of tea and lighter at her. [ 53 ] She disagreed the accused did not grab her arms or hit her head on the wall. [ 54 ] She sequenced the events as follows: [ 55 ] He squeezed her arm, pushed her against the wall and then attacked her by taking her pants off and assaulted her sexually. [ 56 ] He had one of his hands around the front of her neck while she was lying on her back on top of the bed. This occurred before he took her pants off.

He applied strong force to her neck, but she doesn't remember how long that lasted. [ 57 ] She resisted and wanted to protect herself against him. She agreed there was no marks on her neck because his contact with her neck didn’t last long. [ 58 ] She reconciled the comment in her statement where she said he tried to rape her by force, but that she prevented him from having a full sexual relationship with her. He used his mouth and finger as she described, but she prevented him from doing everything else.

She knew he wanted to go further sexually, a woman knows how a man will act and knew from his body language and the way she had been attacked. [ 59 ] She explained not mentioning his mouth was on her vagina in her statement by saying she felt shy and related that to her testimony in court with having referred to her “sensitive area”, but now understands the need to use exact words. [ 60 ] She explained mentioning his fingers penetrating her vagina in one of her statements but did not mentioning it in her initial police statement, as follows.

She testified she felt free to mention it in one of the statements because the police officer was a woman and as a result, the complaint felt free to tell the officer exactly what happened to her. [ 61 ] She didn’t make any noise, nor did she scream while the assault was ongoing. Particularly, she didn’t scream while he had his mouth on her vagina and his fingers in her vagina.

She was afraid of a threat the accused made in 2020 and was afraid he would do something wrong to her or her family . [ 62 ] She denied the accused did not pull either her pants or her underwear down, that the accused did not apply his mouth to her vagina or insert his fingers in her vagina. [ 63 ] She thought the accused was dangerous and capable of hurting her at the time. She left the room went to the bathroom as a result. She was crying and tried to calm herself down.

She stayed in the bathroom a long time and turned the water on pretending she was showering, but she didn’t shower. [ 64 ] She went to the living room; doesn't remember what time it was but thought it was about 9:30 or 10PM. She said hi to her parents, they asked her how she was. She pretended she was fine. [ 65 ] She spent the night in the living room but didn’t sleep. The accused stayed in their bedroom that night.

Her parents went to their bedroom around midnight or 1 AM but didn’t ask her why she was in the living room rather than in her bedroom. [ 66 ] Police took photos of her arm and back, but not her thigh. At the time she met with him she told him the accused hurt her thigh and showed it to the constable. The constable told her to wait three to four days to show a bruise and then take a photo and send it to him, which she did. [ 67 ] She denied the accused didn’t cause the scratches or the bruises shown in the photos.

[ 68 ] She sponsored the accused to come to Canada under a spousal sponsorship. He lied in his affidavit when he said he came to Canada as a refugee. [ 69 ] The complainant’s mother was the first to learn of her relationship and told her father and brothers later. They approved of the accused and supported her both morally and financially. Her parents approved of their relationship and maintained they supported them greatly.

She denied her family was financially controlling of the accused in Canada, and emphatically denied they wanted him to repay the amount they spent to sponsor him. [ 70 ] The accused took his clothes and all his government identity and permanent residence documents at the time he assaulted her and then left for his job. [ 71 ] She denies her family kept possession of the accused’s identity documents while he was living with her, and strenuously reacted to that suggestion by defence counsel, maintaining they were adults, not children. [ 72 ] Her family loved and was very supporting of him before he assaulted her.

Before he came to Calgary, her father helped him financially while he was living in Lebanon and Sudan and transferred money to him for a plane ticket to come to Calgary. [ 73 ] That morning, (which I infer from her other testimony meant the morning of January 8), she was sitting in the kitchen when the accused came outside came from behind her but didn’t say anything. She turned back and faced him, he pushed her on to the sink, she pushed him and ran into her room. Her recollection appears to be consistent with her testimony in chief concerning the sequence of events the morning following.

The Accused’s Evidence In examination-in-chief, the accused testified as follows: [ 74 ] He lived at the residence as soon as he came to Canada in 2019 and received his Canadian permanent residence documents about three weeks after. [ 75 ] He and the complainant lived in the basement of the residence along with her brother for about 3 months when they first moved in. His and the complainant’s relationship was good over those three months, but they then started to have issues.

Her family told him not to pass a particular level of English so the government would continue providing financial assistance. [ 76 ] He denies his controlling behaviour displayed towards her consistent with traditional Islamic values. The opposite was true; she controlled him. Three weeks after he arrived in Canada, her family took his residence permit after it arrived, as well as some Bank cards. He had no identity or government documents.

If he wanted to go out, he had no freedom to do anything. [ 77 ] Approximately 3 months after moving into the residence, he and the complainant moved out of a basement suite into the room beside her parent's room. The wall between the rooms was thin and movement and sounds were audible. He wasn't comfortable, felt like he was confined and didn't have his own freedom at home or even in his bedroom. [ 78 ] You could also hear sounds from the living room in the bedroom.

Vice versa, the complainant could be heard if she was in the bedroom. [ 79 ] The complainant didn't sleep with him in the six months leading up to January 2021, and they weren’t sleeping with each other around January 7 and 8. [ 80 ] The most significant issue in their relationship before January 7, 2021, arose when he came home from work on the 7 th . She gave him five separate papers and told him he had to sign them within two days. He asked why he was supposed to sign something that he knew nothing about.

He wanted to know what they were, which is when she changed her mind and told him she wanted them signed right then. [ 81 ] She left the bedroom screaming he had to sign the papers and joined her parents while they were sitting in another room. She was angry and upset. Her father told him to sign them. He had no issue with signing them, but wanted to know what he was signing. He nonetheless signed the documents. He still doesn’t know what he signed nor was he given copies.

He later found out from the court that the complainant had divorced him. [ 82 ] He had no identification documents and had to go to a downtown shelter. [ 83 ] He found a job in a Mosque and was able to stay and work there. [ 84 ] He has no friends or family support in Calgary aside from help he's been offered by the mosque. [ 85 ] The following occurred on January 7, 2021. [ 86 ] When he came home from work between 5:30 and 6:00 before he went to his room, he sat with her parents for about 20 minutes. He went into the bedroom. She had put some food out, but he wasn’t hungry. He suggested they talk.

She was very upset. She knocked a lighter he was holding out of his hand. He picked the lighter up, told her to relax. She got mad and hit his shoulder three times. [ 87 ] He told her that if she was somebody he didn't know, he would split her in two, but he loved her and wouldn't hurt her. He

wasn't raised on the basis of him reacting by hitting her like she hit him. [ 88 ] He was asked then to repeat the comment and again testified that after she hit him three times on his shoulder, he told her that if she was somebody he didn't know that had hit him, he would have split them in half, in two pieces. But he loved her and that was not how he was raised. He wasn't trying to threaten her. He could have hit her back but did not. He respected her and told her that's not how his parents raised him. [ 89 ] He didn't intend to threaten her, but he was under pressure because of what had happened between them.

He told her he didn't intend that to be a threat. His parents raised him never to hit a female. She hit him three times and he told her not to do that again, those actions wouldn't benefit either of them. [ 90 ] He remembers the day and was sure this happened on January 6, 2021. [ 91 ] He denies coming up behind the complainant at the sink and pushing her before he left for work that day and denies all the accusations of sexual assault. [ 92 ] He decided he was going to leave the house and find another place.

He got up, washed his face, made coffee and before he left, put some work and a few clean clothes in a garbage bag. He and the complainant exchanged messages. She responded by telling him to close the door from the inside before he left. [ 93 ] He wasn’t able to take his government documents which he received about 3 weeks after he arrived in Canada. Her father had taken those papers. [ 94 ] His friend dropped him off at work after he left the house on January 8 th . He worked, and requested his friend and employer take him to the residence to ask for his papers.

His friend, his employer told him he could stay at his place until he found a place. [ 95 ] In answer to several leading questions by defence counsel, he testified to the following: [ 96 ] He normally had a house key to the residence and had full access to the home with it during the time he was living there. [ 97 ] He didn’t have his key when he left the residence the morning of January 8.

Despite that, he agreed to lock the door to the residence as he left because they were all sleeping, and he wasn't supposed to leave the door unlocked. [ 98 ] In answer to a leading question about his employer making a trailer available to him, he testified he went to his employer's house and was informed they were going to let him stay in a trailer until he found a place to live for he and his wife.

He sent a friend from work to get his papers, and learned through his employer the police were looking for him. [ 99 ] He had no intention of returning to the residence to live after packing his clothes and leaving for work on January 8th, 2021. He couldn't live there anymore because of the issues with the complainant and the problems with her parents being there. [ 100 ] He found out Police were looking for him while he was at his boss’s house. He turned himself in, but didn't learn about the accusations until later. [ 101 ] He denies grabbing the complainant by the arms.

Everything she said didn't happen and wasn't true. [ 102 ] He denies that on January 7th, 2021, he hit the complaint’s head against the wall and scratched her back. That didn't happen. [ 103 ] He denies that on January 7th, 2021, he removed the complainant's pants, her underwear, spread her legs and applied his mouth and fingers to her vagina. That didn't happen. [ 104 ] Before the exhibit 1 photos were taken, he asked the complainant what was on her body.

She told him she hit her knee and leg on the side of the bed and said something about the injury being “old’. [ 105 ] In response to being asked for his comment about the complaints allegations that he caused these bruises and scratches, he testified those things were a shame, he didn't do those things and he would never harm the complaint like that.

In cross-examination , the accused testified as follows: [ 106 ] He denies the argument that she maintains happened on January 6 th , actually happened on January 7th, the day before he left. [ 107 ] He acknowledges in their January 6th argument, he said words to the effect that if she was someone he didn't know, he would split her in two but told her he loved her and that he was not going to hit her like she had with him, because his upbringing didn't allow him to do that. [ 108 ] When asked if his comment about splitting someone in two amounted to him threatening to murder someone, he maintains that at the same time he told her he loved her and that he wouldn't do that to her.

After making the comment, she walked out and started screaming that he was going to cut her in two her father asked him what he was doing and he tried to explain what happened but she didn’t let him because she was really upset. [ 109 ] He maintains the argument the complainant says occurred on January 7 where she says he grabbed her arms and squeezed them happened on the 6 th , but he didn't grab her, didn't push her and didn't do anything to her.

[ 110 ] Whatever date the exchange happened, be it on January 6th or 7 th , he denies throwing a cup of tea at her. [ 111 ] He denies all of the following:

i) grabbing her arms between her shoulder and elbows using force ii) pushing her against a wall. iii) putting his hand on her throat and over her mouth. iv) scratching her back.

v) taking her pants and underwear off. vi) licking her vagina and putting his fingers in her vagina. [ 112 ] All of that didn't happen and they had no sexual relationship at the time. He denies all of that happened because he was non- violent towards the complainant. [ 113 ] He has no idea how the complainant received the marks on her arm depicted in Exhibit 1 and 3, nor does he have any idea at all how the complainant received the scratches on her back depicted in photo 5. [ 114 ] He was directed to photograph 4 contained in Exhibit 2. He agreed that depicted a considerable sized bruise on her thigh.

When asked about him having no idea how the complainant got that injury, he testified only God knows, he doesn't, but she does. [ 115 ] When asked about her testimony about what happened on January 7th and the events of the morning of January 8th where she says he pushed her while she was by the sink, he maintains that didn't happen. [ 116 ] He didn't take his identity documents with him on January 8th even though he testified he knew they were important to him because he was too embarrassed to ask his father-in-law for them, and then sent his friend with the Calgary Police to retrieve them, but still didn't get them back. [ 117 ] When asked if the family requested, he fail various levels of the English exam, he testified he failed the first semester, but passed some of the levels, but the family got upset at him. [ 118 ] At the time of his testimony, he was then paying any money back to the complainant's family, nor has he paid all the money that was owing, which wasn't $125,000 which he claims is a lie.

He agreed the amount was large but wasn't $125,000. In re-examination by Defence counsel and re-cross examination by the Crown concerning the affidavit (Exhibit 3) , the accused testified as follows: [ 119 ] He didn’t write the affidavit “word for word” but then didn't remember exactly what he told his lawyer. He provided the information in the affidavit to his lawyer and his lawyer drafted the affidavit.

His lawyer made his best efforts to read or interpret the contents of this in Arabic to him because his lawyer spoke Arabic, but qualified that late in his testimony by saying, a little bit of Arabic, but not much. [ 120 ] He had the affidavit “verbally translated” to him from English to Arabic, but, his lawyer didn’t actually translate it, but just verbally read what was there but “some parts that were incorrect”. [ 121 ] He is adamant he never used the word “refugee” or referred to himself as a “refugee” in his discussions with his lawyer. [ 122 ] He denies giving some information to his lawyer appearing in the affidavit to the effect that his wife harbours animus and malice against him because she feels he owes her something for helping him to get into Canada. [ 123 ] He testified he did not personally choose the words that went into this affidavit and there were some words for example, the word “refugee” which he didn't provide, as well as the words that he agreed to marry her so he could come to Canada.

In re-cross-examination by Ms. Wells, the accused testified as follows: [ 124 ] Even though he didn’t address this in direct or re-direct, he now testified him saying he attended with a police escort at his wife’s’ residence on January 9 th was a mistake, because he testified his friend went to get his belongings back. [ 125 ] He now maintains that when he met with his lawyer, he told him everything, but didn’t tell him about the incorrect information in paragraphs 2. 10 and 11. [ 126 ] When asked if he corrected his lawyer on things that were wrong in the affidavit while his lawyer was translating it from

Arabic, he testified he doesn't remember him translating it, and had it been done the way this was being interpreted for him at trial, hewould have told him about things that were wrong. [127] When asked if he was present in court for the hearing on the emergency protection order, he testified he doesn't remember, butalmost immediately changed that to say yes, he was present and he thinks there was an interpreter present.

Issues: The overarching issues are as follows: [128] First, the fundamental issue relates to the credibility of witnesses and the reliability of their testimony. [129] Second, have the elements of all three alleged offences been proven beyond a reasonable doubt? Parties Positions: [130] The parties’ positions as expressed in their respective written submissions, are as follows: Defence argues the following: [131] The crown has failed prove the elements of each offence beyond a reasonable doubt.

Relating to the assault allegations, theysay there are not sufficient details of the actus reus of the alleged offences, the absence of which cannot be dismissed because of thetranslation of the evidence. [132] In relation to the alleged sexual assault, they argue that if the complainant’s evidence concerning the assault is accepted, thereis no compelling evidence concerning her lack of consent. [133] They argue in effect the complainant is not credible nor is her evidence reliable.

They point to aspects of her evidence tosupport those submissions as follows: the complainant’s unsupported allegations concerning the accused’s Isis tendencies, thesignificance of his questionable Canadian immigration status, the negative animus of the complainant’s family towards the accused, theresulting loss of his travel documents, the complainant’s unconvincing emotional state throughout the events and her inconsistentdescription of the alleged assault. [134] Concerning the allegations of assault and sexual assault, they argue, in effect, that on all of the evidence, the court ought toaccept what amounts to the accused’s bare denial of having assaulted the complainant.

After a proper application of the Supreme Court’sdecision in R v WD, (SCC), [1991] 1 SCR 742, the accused’s evidence should be sufficient to raise a reasonable doubtand acquittals must result. [135] I understand the sum and substance of the defence argument to be the accused should be found to be a credible witness and as aresult, the Court should accept his denials of him becoming physical with the complainant, his version of the overall sequence of events,his explanation for the complainant’s alleged injuries and his explanation for the confusion in his immigration application status in crossexamination arising from his misunderstanding in a court affidavit. [136] Defence argues the accused’s post-event conduct of him leaving the residence should not result in a finding he was fleeing asituation where he knew he had assaulted the complainant where other alternative possibilities existed. [137] Concerning the allegation of uttering threats on count 2, the accused did not threaten to harm the complainant given hiscomments.

Defence argues the offence has not been made out given the accused’s words, but concedes it is still open to the court tointerpret his comments and actions. The Crown argues the following: [138] The Crown asks the court to remain disciplined in making findings of fact which arise from evidence relating to the allegedoffences and the court need not resolve every factual issue which may be disputed by the witnesses.

They remind the Court theallegations in this case relate to alleged intimate partner violence, and as such, impermissible myths and stereotypes concerning thecomplainant’s expected behaviour have no place in deciding the case. [139] The Crown clarifies they are not raising the issue of the accused’s post- offence conduct recognizing the accused’s attendanceat his employer’s house after what he maintains was a verbal dispute with the complainant may be equally consistent with thecomplainant’s version that a physical and sexual assault occurred. [140] The Crown argues the complainant was a credible witness whose evidence should be found to be reliable.

She provideddetailed, consistent evidence of the assault she alleges and the threats she received without being led throughout any aspect of herevidence.

Any difficulty she had with describing the precise order of events is inconsequential, recognizing her description of theessential components of the alleged assault remained intact both in her evidence and in her police statement. [141] Concerns relating to the complainant’s reliability concerning the allegations of assault, if any, are resolved by the corroboratingevidence of a physical assault demonstrated in the photos taken by the constable and by the complainant’s brother, by her injuries and byher emotional state as observed by the constable after the fact.

[142] The complainant’s evidence should also allow the court to conclude she had no motive to fabricate or lie. [143] In relation to count 2, the complainant’s evidence about the threat she received from the accused was emphatic and entirelyconsistent. A conviction on that count ought to result. [144] The Crown then argues the accused’s flat denial of guilt is built on an illogical narrative of the complainant and her familydynamics and their attempts to control him.

His evidence was contradictory and offered no credible explanation for the injuries shown inthe photos. [145] Overall, the Crown argues that while this is not a credibility contest, there were no witnesses in the bedroom at the time, but thecorroborating evidence of the photos of the complainant’s injuries and her emotional state on January 8 is compelling confirmation ofher testimony that she had been assaulted by the accused.

Law [146] The following law (all of which this Court has considered) was cited by the parties, as follows. [147] Both parties cite WD. [148] The Crown cites R v Ryon, 2019 ABCA 36, R v Achuil, 2019 ABCA 299, R v SKM, 2023 ABKB 144 at paras. 27-38 and R vARD, 2017 ABCA 237 at paras 42-43. [149] Defence cites R v Murray, 1997 Can Lii 1090 (Ont CA); R v MQ, 2010 ONSC 61 and R v.

JB, 2018 ABQB 452. [150] The Court (of its own motion) refers to it’s judgement in R v JM, 2022 ABPC 173, a sexual assault case, where particularsections of the Criminal Code and the following cases were relied upon: R v Villaroman, 2016 SCC 33 ; R v Lifchus, (SCC), 1997 3 SCR 320; R v Starr, 2000 SCC 40, R v McKay, 2011 ABPC 82 (ABPC) ; R v Ewanchuk, (SCC), 19991 SCR 330 (SCC) ; R v Garford, 2021 ABCA 338; R v Gordon, 2015 ABCA 341. [151] I refer also to R v LWT, 2023 A.J.

No 661 which cites R v Rana, 2010 ABPC 158. [152] In relation to count 2, the Court (of its own motion) refers to R v McRae, 2013 SCC 68. [153] I refer to the following paraphrased sections of the Criminal Code as they relate to the assaults alleged in counts 1 and 3. [154]

Section 271 prescribes the punishment attributable to the commission of sexual assault. [155]

Section 266 makes the commission of assault an offence. [156] Section 265(1)(

a) provides that a person commits an assault when, without the consent of another person, he applies forceintentionally to that other person, directly or indirectly. [157] Section 265(1)(

b) provides that a person commits an assault when he attempts or threatens by

an act or gesture to apply force toanother person, if he has, or causes that person to believe on reasonable grounds, that he has the present ability to affect his purpose. [158] Section 265(2) provides that

section 265 applies to all forms of assault, including sexual assault. [159]

Section 273.1(1) defines “consent” for the purposes of

section 271 to mean “the voluntary agreement of the complainant toengage in the sexual activity in question.” [160] I refer to

section 264.1(1)(a) (now paraphrased) as it relates to the threat’s allegation found in Count 2: Everyone commits an offence who, in any manner, knowingly utters threats, conveys or causes any person to receive a threat to causedeath or bodily harm to any person.

Credibility and the Burden of Proof [161] I refer to the following law concerning credibility and the burden of proof. [162] This case in part, turns on the application of the instructions in WD. [163] First, if I believe the accused’s evidence, I must acquit. [164] Second, even if I do not believe that evidence but am left in reasonable doubt that it is somehow true, I must acquit, [165] And third, even if I am not left in doubt by that evidence, on the basis of the other evidence which I accept, am I convincedbeyond a reasonable doubt of the accused’s guilt by that evidence. [166] The WD instruction was considered in Ryon, where Martin J.A. writing for the majority, held the instruction should be read asgenerally applying only to exculpatory evidence.

The Crown must negate an element of the offence beyond a reasonable doubtconcerning, not evidence that is inculpatory or neutral. [167] The Court generally held the instruction ought to convey the following:

[ 168 ] The burden falls on the Crown to establish the accused’s guilt beyond a reasonable doubt and the burden never falls on the accused to prove his innocence or disprove the Crowns evidence, subject to certain defences. [ 169 ] If the Court believes the accused’s evidence denying guilt or other exculpatory evidence to that effect, or if it is not confident it can accept the Crown’s version of events, the Court must acquit. [ 170 ] The Court should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, recognizing however that a trial is not a credibility contest requiring it to decide that one of the conflicting versions is true.

If, after careful consideration of all of the evidence, the Court is unable to decide who to believe, it must acquit. [ 171 ] Even if the Court completely rejects the accused’s evidence or exculpatory evidence, the Court may not simply assume the Crown’s assessment of events must be true. Rather, the Court must assess the evidence it believes and decides whether that evidence persuades it beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence, or exculpatory evidence where applicable, cannot be taken as proof of the accused’s guilt. [ 172 ] In Achuil , at paragraph 17 , Martin J.A. reconsidered his comment in Ryon about a court not being confident if it could accept the Crown’s version of events as that might arise on the second prong of the WD test.

The Court reverted to what he saw to be safer wording by saying if the accused’s exculpatory evidence denying guilt is believed (or if not believed), an acquittal must follow if it still raises a reasonable doubt. [ 173 ] In Garford the Alberta Court of Appeal held that WD does not conscript a trial judge to the order in which the witness’s evidence must be assessed, particularly in the case of a bare denial.

In that event, it would be artificial and fruitless to assess and weigh an accused’s evidence in a vacuum. [ 174 ] In LWT , at paras 15-22, my learned colleague Shriar, J referred to the caution sounded in Garford where trial judges must avoid conflating a bare denial of criminal activity with reason to disbelieve an accused or characterize the denial as being self serving without saying why. While a bare denial might be what an accused might offer if they were wholly innocent, it does not automatically entitle the person to an acquittal.

From R v Rana at para 15 , it is impossible to assess the truthfulness of a bare denial without more context, and if that comes from the complainant’s evidence, the assessment becomes whether all the evidence including the denial and the complainant’s evidence leaves the court with a reasonable doubt.

Where the main other evidence is that of the complainant, its strength becomes a significant consideration in assessing the credibility of the denial. [ 175 ] In Gordon , a sexual assault case, the Alberta Court of Appeal held a court need not address every piece of an accused’s exculpatory evidence or every inconsistency in the complainant’s evidence to explain why the complainant’s credibility was not undermined to correctly apply the principles in WD The paramount question in a criminal trial is whether, on the whole of the evidence, a court is left with a reasonable doubt as to the guilt of the accused.

Assessment of Credibility [ 176 ] In McKay , the court referred to the assessment of credibility as being one which allows a judge to consider demeanour, recognizing demeanour alone is a very poor indicator of reliability or truthfulness. Skilled liars can present very well. [ 177 ] The more important question of whether a witness’ testimony effectively “hangs together”. How plausible is it? Is it logically connected to its context? How consistent is it with other evidence?

If there are discrepancies or inconsistencies, do those arise from honest mistakes through frailty of human memory, or are they a deliberate distortion?

Does the witness have a motive to fabricate or distort the evidence? [ 178 ] When assessing the reliability of a witness as opposed to his honesty, a Court should have regard to a witness’ opportunity or ability to actually perceive what the witness claims to have perceived, the witness’ ability to recall what was witnessed, and then the witness’ ability to recount. [ 179 ] The honesty of a witness has little to do with the witness’s ability to perceive, recall or recount and comes into issue by assessing factors such as bias, motivation to lie or any other factors which might lead a witness to deliberately distort the truth.

The Burden of Proof [ 180 ] The burden placed upon the Crown in this case at bar is proof beyond a reasonable doubt: Lifchus at paragraph 39 . A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice but rather on reason and common sense. It is logically derived from the evidence or absence of evidence.

Probability or likelihood is not enough, and, in those circumstances, this Court must give the benefit of the doubt to the accused. [ 181 ] On the other hand, the Crown is not required to meet the impossibly high standard of proof of absolute certainty. [ 182 ] Based upon all the evidence the Court, in effect, I must be sure of the proof of the elements of this offence. [ 183 ] An effective way to define the reasonable doubt standard is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities: Starr . Law – Sexual Assault

[ 184 ] In JM , at paragraph 351- 359, this court referred to portions of Major J.’s majority judgment in Ewanchuk concerning the law relating sexual assault, non-consent and mistaken belief in consent which I do not intend to repeat in detail here. [ 185 ] Suffice it say, the Supreme Court held a conviction for sexual assault requires proof beyond a reasonable doubt that the accused committed the actus reus of the offence, that is unwanted sexual touching, and that the accused had the necessary mens rea , that is, the intention to touch without being reckless or willfully blind to a lack of consent either by words or actions from the person being touched. [ 186 ] The crime of sexual assault is only indirectly defined such that it is comprised of an assault which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. [ 187 ] The Court set out the elements of the actus reus of the offence by saying it is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’s actions were voluntary. The sexual nature of the assault is determined objectively. [ 188 ] The absence of consent as an element of the actus reus is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching. The court is only concerned with the complainant’s perspective at this point.

The actual state of mind of the complainant is determinative and the approach is purely subjective. [ 189 ] A court should first consider whether the complainant, in her mind, wanted the sexual touching in question to occur. Once the complainant has asserted that she did not consent, the question is then one of credibility. In making this assessment the court must take into account the totality of the evidence, including any ambiguous or contradictory conduct by the complainant.

If the trier of fact is satisfied beyond a reasonable doubt that the complainant did not in fact consent, the actus reus of sexual assault is established and the inquiry must shift to the accused’s state of mind. Law- Uttering Threats [ 190 ] In McRae , the Supreme Court set out the essential elements of threatening by saying the legal question of whether the accused uttered a threat of death or bodily harm turns solely on the meaning that a reasonable person would attach to the words viewed in the circumstances in which they were uttered or conveyed.

Crown need not prove the intended recipient of the threat was made aware of it or if she was, that she was intimidated by it or took it seriously. [ 191 ] The mens rea of the offence is whether the words spoken were meant to intimidate or to be taken seriously. Words spoken in jest or in circumstances where they could not be taken seriously could not lead a reasonable person to conclude that the words conveyed a threat, citing R v Clemente .

Law- Post offence/after-the-fact conduct/circumstantial evidence. [ 192 ] I reviewed the law relating to post offence/after the fact conduct and circumstantial evidence in JM , at paragraphs 363-366, citing various Supreme Court cases, particularly Villaromon , from which I extract the following: [ 193 ] In order to convict on circumstantial evidence, a court must be satisfied beyond a reasonable doubt that the only rational inference that could be drawn from the circumstantial evidence is the accused’s guilt after having considered other plausible theories and other reasonable possibilities that are inconsistent with guilt.

The Crown is not required to negate every possible conjecture which might be consistent with the accused’s innocence. Court

Interpretation [ 194 ] Before proceeding with the court’s analysis in this case, I want to briefly address a submission made by defence, which, as I understand it, there was a lack of detail in the evidence concerning the alleged assault which somehow arose because of the

interpretation of the evidence in these proceedings. Defence submits the translation was sporadic at times to the detriment of the accused. I respectfully disagree. Two separate translators were employed throughout this trial, one of which undertook continuous translation of all the evidence. As far as I can see, both those translators were attentive to their respective tasks. Defence has not identified any specific ambiguity or circumstance where the translation might have been deficient, nor do I see this to be an issue which might adversely affect the outcome of these proceedings.

Analysis Count 1-Sexual Assault-the actus reus Credibility [ 195 ] I’ll first address the allegation of sexual assault in Count 1. Consent or absence of consent to the

section 271 sexual touching alleged by the Crown in count 1 in this case only comes into issue if the first two elements of the actus reus of that offence are made out. This requires an assessment of the credibility of the respective witnesses. The following credibility assessment also has general application to the Court’s later analysis concerning both counts 2 and 3.

[ 196 ] I’ll start by saying I find the Constable to have been a credible witness and I can rely upon his evidence. [ 197 ] Its fair to say the substance of the accused’s exculpatory evidence in relation to the allegations of assault constitute bare denials of the complainant’s allegations. In effect, the accused asserts he didn’t touch the complainant and didn't assault her. [ 198 ] To avoid considering the accused’s denials in any sort of a vacuum, I will start with an assessment of the complainant’s testimony.

The complainant’s credibility [ 199 ] Right at the outset, I want to address the complainant’s evidence concerning what she testified to be the accused’s ISIS tendencies she maintains were displayed towards her during their relationship. Defence counsel argues if accepted, that evidence in its totality would amount to no more than a prejudicial, stereotypical assessment of the accused and must be avoided. I agree.

The complainant obviously had concerns with the state of their marriage, their personal interaction and the control exerted over one another (as did the accused), but the claim the accused had an ISIS connection does not assist the court with this analysis and I decline to take that claim into account. [ 200 ] That aside, the complainant’s evidence seemed to be generally consistent, and I refer to the following examples. [ 201 ] In cross-examination, she testified he had one of his hands around the front of her neck while she was lying on her back on top of the bed and in direct examination, she was careful to say she was in shock and couldn’t remember what hands he used.

She didn’t stray by bringing both his hands into the discussion. [ 202 ] And then when asked by Mr. Ly about the accused twisting her arm, she immediately corrected Mr. Ly by saying he “squeezed” her upper arm, a comment which serves to reinforce my confidence concerning her ability to recall and recount the detail associated with accused’s actions in the course of the events. [ 203 ] Overall, the complainant seemed frank with her testimony. She admitted when she couldn’t remember details and sought clarification which seemed to arise in a limited way as result of her English comprehension.

If she couldn’t remember or couldn’t respond to a question, she said so. She was calm and respectful of the Court and of both counsel. She was forthright and didn’t seem to be concocting evidence, particularly that which related to the alleged assaults. [ 204 ] She was largely internally consistent with her testimony with a few minor inconsistencies which in my view, do not detract from her credibility.

Some examples follow: [ 205 ] In direct, she testified to activities the next morning which, (in her sequence of events, meant September 8) where she intermixed the accused pushing her on the sink with him “trying” to push her .

Despite the hesitation, her meaning that he in fact pushed her on the sink was apparent. [ 206 ] In cross examination when asked if the accused had not removed his own pants, she first testified his pants were on, but then said she didn’t know, she didn’t remember, she was trying to protect herself and she didn’t notice. [ 207 ] All of that might be seen to be inconsistent, but she answered honestly knowing the question effectively related to whether the accused remained dressed, not whether he disrobed. [ 208 ] But more importantly, in direct examination, she was able to clearly testify about the accused taking her pants and underwear off, which bears much more directly on how she says the alleged sexual assault actually occurred. [ 209 ] She was asked twice in direct examination as to the date of her marriage to the accused and changed the month of the marriage from December to September.

This is an insignificant detail unrelated to the alleged assaults, but which she nonetheless quickly corrected. I find this demonstrated her ability to recall detail, especially knowing she didn’t hesitate with identifying the time of their February 2022 divorce. [ 210 ] And then in cross-examination, Mr. Ly suggested she earlier testified about her parents not hearing anything that was going on in the bedroom. This invited an initial response that she didn’t know whether her parents were able to hear anything, but then concluded by saying her parents didn’t hear anything.

Her conclusion appears to amount to little more than conjecture, and she may have overstepped here, but in my view, this doesn’t amount to dishonesty. [ 211 ] The complainant otherwise appeared to have her own clear recollection of the events. [ 212 ] She was able to sequence and describe the events in the bedroom where she alleges, she was sexually assaulted. [ 213 ] I was impressed by the complainant’s response in cross-examination to the suggestion Mr. Ly made that these allegations had been made against the accused because she wanted him to be deported. She testified as follows: Q: Mr.

Ly: “at the time of making your allegation to the police, did you know that [ASA] could be deported if he was convicted of these charges? A: The witness: “No, I don’t know that. I don’t know that. Q: Mr. Ly: “You are aware that [ASA] is a permanent resident; correct?” A: The witness: “Yeah”

Q: Mr. Ly: “Are you aware today that if – like do you – are you aware today that if [ASA] were convicted of these charges, that he would be deported?’ A: The witness: “No, I don’t know that.” Q: Mr. Ly: “If I put it to you that you are making these allegations because you want [ASA] to be deported, would you agree with me?” A: The witness: “I don’t agree, because I spent 9 years of my life to sponsor him, and to live together, and build our life, and having children and family in the country that’s provide us peace, and security, and safe.

Do you think after 9 years of my age or life, after that I did all these things just to deport him? This is not reasonable. Sorry for that.” Q: Mr. Ly: “If I put it to you that your family instructed you to make these allegations because—” A: the witness: “No, I don’t agree.” Q: Mr. Ly: “they want [ASA] deported, would you agree?” A: the witness: “Don’t agree about that. No.” [3] [ 214 ] Her response wasn’t contrived. It was clear, confident, spontaneous, emphatic and convincing.

She testified she spent 9 years of her life to sponsor the accused, live together, build their life together, have children and family in the country that provided them with peace, security, and safety. She turned the question back to Mr.

Ly, asking if he thinks, after what all of what she had done over those 9 years, was done just to have the accused deported, and concluded her thoughts by asserting that wasn’t reasonable. [ 215 ] In fact, she then went on to make an honest admission that at the time of making her allegations to police, she didn’t know the accused could be deported if he was convicted of these charges.

She also emphatically denied her family instructed her make these allegations because they wanted the accused deported. [ 216 ] In my view, these specific aspects of her testimony serve to dispel the suggestion she was motivated to lie about these events and in fact, significantly enhances her credibility. [ 217 ] The same might be said of her evidence concerning the alleged loss of the accused’s immigration documents brought about by her actions or those of her family.

The accused agreed the complainant’s family went to considerable effort and expense to assist his arrival in Canada, expense he himself says he was working to pay back.

It makes no sense to believe the complainant and her family displayed animus towards the accused by them all being part of a united plan to see the accused deported, when in fact both the complainant and the accused say the family took steps to see him plant roots and succeed in Canada. [ 218 ] Defence argues the complainant’s reluctance to describe the accused’s alleged contact with her vagina, preferring instead to refer to the area as her “sensitive area” negatively affects her credibility. [ 219 ] The complainant struck me as a proud woman possessing poise, self-esteem and strength, and it seems to me her reluctance originates from her personal embarrassment with having to discuss these sorts of personal matters in an open forum.

Her original reluctance to discuss the matters with police was tempered later by her dealings with a female officer photographing her injuries, and by her recognizing the need to be precise with her description in open court.

In my respectful view, any reluctance by the complainant to describe the accused’s physical contact with her body doesn’t amount to a negative comment on her credibility. [ 220 ] Something should be said of the concern raised by defence concerning the complainant’s recollection of the order of these events, mistaking one day for another, which they say ought to affect how I view her credibility concerning the allegations.

The complainant says the sexual assault occurred on January 7 after the accused arrived home and in doing so, she provided a detailed, consistent description of the activities comprising the assault, and a full description of her resulting injuries. [ 221 ] She was able to clearly sequence and describe the events and in doing so, provided her recollection of the date and time, between 5:30 and 7 pm, but couldn’t recall the exact time and was able to say it was “sunset”.

Her ability to recall this one apparently small, peripheral detail suggests her memory of the date and indeed, the events as a whole, is reliable. [ 222 ] In my view, not much can be gained by attempting a precise reconstruction of the events to determine their place in time. I note all three counts on the information allege offence dates occurring on the 7 th, or between the 5 th and 8 th of January 2021.

I note the accused himself also places events within that time frame but wants to account for the time between the 6 th and the 8 th differently, apparently to account for a time span which allowed her family to hide his travel documents.

The accused simply asserts in his evidence (and then in defence counsel’s closing argument), the events where the complainant says he grabbed her arms, happened on the 6 th , but gives no explanation how he can say that. [ 223 ] The complainant commented on the location of her parents at the time initially saying were in the living room before she and the accused went into their room, but she didn’t know where they were after, thought they might have gone to the basement but didn’t know where, and then immediately remarked they went to the basement because it was winter.

Yes, the comments may seem contradictory, but the contradiction has little bearing on her testimony about the events in the bedroom. [ 224 ] The Crown exercised its discretion to call a limited number of witnesses and chose not to call the complainant’s parents to either corroborate the complainant’s evidence or to contradict the accused’s. Even though the complainant’s family were present in other locations in the house at the time of the alleged offences, they were clearly not in the bedroom at the material time.

Nor were they called to explore what defence says was a family atmosphere of negative animus shown to the accused or to explain the location of his immigration documents. [ 225 ] I recognize the accused has no burden to prove or disprove the Crown’s case, but had defence thought the parents could have

somehow supported their defence, defence could have chosen to subpoena them to testify, but did not. [ 226 ] The focus in this case concerning the allegations of sexual assault is on the events in the bedroom. I view the complainant’s evidence concerning those events to be internally consistent and consistent with her police statements. She is a credible witness, and I am prepared to rely upon her evidence. The accused’s credibility [ 227 ] The accused’s seemed confident with his testimony at the outset.

I recognize demeanour is a much less important consideration when considering a witness’s credibility, but with the accused, it’s worth observing the following. He maintained a calm, flat affect at the outset of his testimony, but as he went on, his confidence level seemed to drop when he became more animated and used noticeable rapid hand gestures, as if he was trying to somehow enhance his testimony.

Animus [ 228 ] The accused offered a narrative which seemed to be designed to discredit the complainant and her family by suggesting they displayed animosity by setting him up to fail by encouraging him to fail English language tests for financial reasons and by keeping his immigration documents from him. That runs contrary to his own evidence such that his permission to enter Canada had been supported by both the complainant and her parents, both financially and by the parents opening their home to him.

The accused’s narrative doesn’t make sense. [ 229 ] The accused contradicted himself concerning his relationship with the complainant and her family. [ 230 ] In direct, he testified after he and the complainant moved into the other bedroom leading up to January 2021 there were problems.

For about six months, he testified she slept in her mom's room and for that entire time, he tried to make up with her, but she wouldn't talk to him over the time, but immediately contradicted himself by saying she would come to talk to him but was not respectful of him. [ 231 ] Then in direct, the accused testified the complainant’s family approved of their relationship while they were outside the country, but everything changed when he came to their house. He testified he had no freedom in the house and whenever they went out, her brother was always with them and if he wasn't with them, it felt like he was.

What started out as an obvious overstatement about the brother always being with them, moved on to become an obvious contradiction. [ 232 ] When he left his wife's family home on January 8th, 2021, he still had his job and was still getting paid. Three days before he left, he received a paycheck and gave it to her. He says has kept subsequent pay checks, contrary to his testimony that he would pay her parents back for bringing him here. [ 233 ] The accused unconvincingly also tried to position himself as the victim. For example, he testified her brother and brother used to get involved in their arguments.

Her brother would try to make him look small, tell her that the accused was wrong for her, and he was stupid. This doesn’t seem reasonable when at other points in his evidence, he testified the family was supportive of him. [ 234 ] The accused became critical of the complainant at one point, and in doing so, became combative with Ms. Wells. He testified he doesn't know why the complainant was afraid when the Constable attended the residence, and then turned the tables on Ms. Wells by asking if the charges were between the 5 th and the 8 th , why did the complainant wait all that time to respond?

Money [ 235 ] The accused’s testimony concerning his and the complainant’s finances is both contradictory and confusing. [ 236 ] In direct, he testified she held their bank cards when he started working and would take cash out and spend it as she wanted. The unanswered question arises: how would he know she was taking cash out at will without him having access to the accounts via a bank card or otherwise? [ 237 ] In cross examination, he testified he went to a bank but didn't open his own account but opened a joint account with the complainant.

He received a debit card, but the complainant took that from him, and he had no access to it. [ 238 ] But just after, he testified he never had his debit card at work suggesting he may have access to at other times.

This was contrary to him just saying the complainant had taken the debit card from him and a lot of days he didn’t carry cash, contrary to him saying he didn’t have access to cash. [ 239 ] He testified the complainant criticized him for the $125,000 her family spent on him to get him to Canada which he had to repay her brother and her father but promised he would pay that money back when he started working He testified she asked him for cash about twice, but then contradicted himself by saying she didn't ask him for the money, he simply gave it to her to make good on his promise. [ 240 ] In direct, he testified he didn't have any money for coffee or personal spending money, but then contradicted himself by saying she used to give him a limited amount of money. [ 241 ] He maintained he didn’t have any bank statements or debit cards, gave his pay checks to his wife and went to work with no

cash, credit or debit cards.

But he then contradicted himself by saying the complainant would not always give him money from his paychecks and most days, he had no cash and had to ask his manger for money to buy cigarettes. [ 242 ] He denies being controlling, and tried to turn the tables by saying it was the complainant and her family who controlled him by hiding his government documents and bank cards, contrary to him saying he had no bank cards. [ 243 ] But in cross examination, he changed course by suggesting he voluntarily relinquished his pay to his wife, he didn’t have cash of his own, but despite that, was somehow able to start repaying her parents for their cash advances. [ 244 ] When asked if he would leave the house with no method of paying for anything, he responded by saying that one time he would get money from his friend to buy her flowers and chocolates and sometimes she would give him money, but he used his money to buy things for the complainant.

This proposition seems unlikely to the extreme, especially for a man who says he goes into the community with virtually no cash or access to cash. [ 245 ] All of this testimony concerning money and bank access seems contradictory, self-serving and concocted to fit his own characterizations of the complainant and her family’s controlling nature. [ 246 ] But despite all these claims, he was still prepared to acknowledge the complainant’s family’s generosity by supporting him financially, both in and out of Canada, very much at odds with his overall narrative.

Violence [ 247 ] The accused asserts his non-violent personality. He was asked to comment about the complainant’s remarks about him and ISIS, the radical Islamic terrorist group. He maintains he is a “peaceful person”. He wouldn’t harm to anyone and even talking about harming humans and animals is forbidden.

He has never had any interaction with terrorist groups, denies being a member of ISIS and is 100% against it, claiming ISIS killed some of his friends and family. [ 248 ] Just as I haven’t taken the complainant’s allegations of the accused’s alleged ISIS connections into account in her credibility assessment, I will refrain from taking his associated denials into account in his.

This discussion by both witnesses is inflammatory and, in my view, distracts from the mission of fact finding in this case. [ 249 ] But that doesn’t mean to say that I must avoid an inquiry concerning the accused’s propensity to violence. [ 250 ] In cross-examinations, he testified he was raised not to be violent towards women and not just any women, he was raised not to threaten or be violent to anyone. [ 251 ] But his claims of him being a peaceful person are dismantled when I hear his later admission of him using language admitting he might be willing to carve someone in half no matter what the circumstances.

The truthfulness of him claiming to be passive, gentle and non-violent becomes highly questionable as a result. The affidavit [ 252 ] Defence says the proper characterization of the accused’s immigration status is not relevant to an assessment of his credibility. I respectfully disagree. The manner in which that status was addressed in an affidavit in evidence has a direct, negative bearing on his credibility in this case. [ 253 ] When first asked in examination in chief about the method he used to allow his entry to Canada, he testified he had been sponsored by his wife, which to him meant a spousal sponsorship.

There was no hesitation with his answer. He didn’t ask for any clarification, didn’t equivocate and said nothing at all about being a “refugee”. He appeared to know precisely what immigration process had been engaged to allow him to enter the country. [ 254 ] In cross-examination, Ms. Wells presented him with the affidavit (now Exhibit 3) filed by him in a Court of Queen’s Bench application brought by the complainant, which stated he was a refugee from Syria. He maintained that wasn’t true, that wasn't translated to him and no one told him that's what it meant.

He was sponsored, wouldn’t lie about that, and signed the affidavit by mistake. [ 255 ] He maintained his lawyer didn’t read the affidavit to him but sent a copy of it to him by email for him to review. [ 256 ] He claimed he doesn't remember if his lawyer read the affidavit to him at the time, contrary to him then saying his lawyer interpreted it for him, He claims had it come up that he was a refugee, he wouldn't have signed it knowing he was sponsored. [ 257 ] When asked about the process concerning signing the affidavit and without being asked, he volunteered his lawyer was present and was the one who interpreted it for him because his lawyer speaks Arabic.

This inconsistency concerning his lawyer’s involvement with the affidavit is glaring. [ 258 ] But it wasn’t until being questioned by the Court about his lawyer reading the affidavit to him in Arabic, that he maintained his lawyer’s Arabic wasn’t very strong. [ 259 ] His apparent inability to understand one particular word in the affidavit, that is, “refugee”, is questionable when he testified in direct examination that when he arrived in Canada in November, 2019 ( which I note was about a year and a half before the affidavit was signed), he was reading, writing and speaking English at various levels, was OK with conversational English and was able to apply for jobs in English, It seems to me any reliance he places on an English language deficit concerning the affidavit’s reference to him

being a “refugee” is highly questionable. [ 260 ] When asked if he had an explanation as to how his lawyer thought he was a refugee from Syria, he continued to maintain he didn’t come as refugee, a mistake occurred.

He doesn’t know how his lawyer acquired that information. [ 261 ] It seems highly unlikely the process employed to allow for his entry to Canada had never been discussed between he and his lawyer, knowing the affidavit, rightly or wrongly, disclosed him being a refugee. [ 262 ] But despite all of this, he readily admits the affidavit contained untruthful information but had still been used in a court proceeding. [ 263 ] The accused takes no responsibility for this result, preferring instead to blame his lawyer and a language deficit for what he claims to be an error, when in fact, he knew full well what his entry status to Canada amounted to.

It is highly improbable he would not have clarified his immigration status and the eventual contents of the affidavit with his lawyer before it was signed. The affidavit used in the related court proceeding was untruthful, which leaves me questioning whether I can believe his testimony in this case and his credibility in this case has been compromised as a result.

The Photos [ 264 ] I have carefully reviewed the series of 6 of photographs (Exhibit 1) taken by police and then the 8 photos taken by her brother (Exhibit 2), all taken after January 7 and I find they all serve to corroborate the complainant’s version of the accused’s physical contact with her. [ 265 ] The bruising on her arms and the marks on her back are highly discernable and suggest some level of force was applied to those areas of her body. [ 266 ] The bruise on the complaint’s left arm is large, red and jagged and is consistent with her saying a bruise resulted by the accused holding her left arm which had been more affected by his grip on this arm, without being more specific about the state of her other arm.

The absence of photos of her right arm speaks more to what she says about the predominant force placed on her left arm and the attention the resulting marks might have attracted with the photographer. [ 267 ] Similarly, there are no close- up photos of her face or neck for similar reasons. The contact in those areas of her body was brief and she did not complain of any marks being left in those areas in her viva voce evidence. [ 268 ] The marks on the left side of her shoulder blade on her back appear to be scratch marks.

They run adjacent and more or less equidistant to one another, consistent with marks left by the force of fingernails contacting her back. They are consistent with her saying the accused pinched or grabbed her from behind while he followed her into the bedroom. which logically would have positioned her back to the accused as they entered the room. The fact that she maintains the scratches resulted just before the assault in the bedroom is of no consequence.

The accused’s actions leading into the bedroom would have all been part of the more extensive transaction occurring within the bedroom. [ 269 ] The large bruise on her right thigh is consistent with her testimony that he squeezed her thigh while he used force to spread her legs while she was lying on the bed on her back. [ 270 ] The accused’s contention in cross-examination that he had “no idea” how the complainant received the marks on her arm, the scratches on her back or the bruise on her thigh as shown in the photos is not believable, knowing he testified in his direct examination that the complainant told him she hit her leg and her knee on the bed.

This, of course, appears to have provided him with at least some idea of their origin, very much contrary to his version of having “no idea” [ 271 ] Just as these photos substantially corroborate the complainant’s evidence, they also serve to discredit the accused’s belief in what he says he learned from the complainant about how her injuries resulted, an explanation which makes no sense given the considerable bruising to her arm and her upper thigh shown in the photos. [ 272 ] The accused, of course, carries no burden to disprove the Crown’s case, but in the course of his evidence, he voluntarily repeated the complainant’s explanation for her injuries.

That does nothing to support an exculpatory explanation for the large bruise on her arms, the severity of the bruise on her thigh and the scratches on her back as shown in the exhibits. In my view, his willingness to repeat her explanation but his inability to present his own contrary explanation adversely affects his credibility. Post offence/ after-the-fact conduct [ 273 ] The Crown clarifies in their written submissions that they are not factoring the accused’s post offence conduct in to establish the accused’s guilt.

They acknowledge his presence at his employer’s house after a verbal argument between them is equally consistent with the complainant saying the accused left the residence because she had been sexually assaulted.

In argument, defence raises aspects of both the complainant’s and the accused’s later activities and as a result, I feel bound to make the following comments. [ 274 ] Defence asks me to find the complainant’s silence during the alleged assault and her emotional turmoil after when the constable attended the residence amount to incompatible, irreconcilable responses in the circumstances and ought to negatively affect her credibility. [ 275 ] The complainant offers a few reasons for her silence in the bedroom. She was afraid of more aggressive actions by the accused

because of his previous threats, and she also wanted to keep her parents out of their relationship. The fact is that she displayed her own unique response in the circumstances, and I will avoid making any further comment about what might be expected of a complainant in these circumstances to avoid the application of impermissible myths and stereotypes.

I therefore decline to comment any further about the complainant’s reasons for remaining silent in the circumstances. [ 276 ] Defence points to the potential for other possible inferences arising as inconsistent with the accused’s guilt if I am inclined to find the accused left the residence on January 8, not January 7 after a non-physical argument between the parties on January 6.

They argue his actions support the inference he moved out even though he cared for the complainant because of intolerable living conditions brought about by the controlling conduct of the parents, not because of just having assaulted their daughter. [ 277 ] On the other hand, if the alleged assault occurred on January 7 as the complainant testifies, it seems to me the accused’s combined reasons for taking his clothes from the house, being too embarrassed to approach his father-in-law for his documents without explaining why, and ending up in a shelter for a time goes beyond him simply wanting to escape what he maintains was unacceptable family pressure. [ 278 ] Defence asks me to find the apparent loss of the accused’s documents between the time of the alleged assault and the constable’s attendance at the residence was arranged by the family over what they say was an extended period, further supports the inference the family held animosity towards him. [ 279 ] But as I see it, even if the documents were in the father’s possession as the accused says, it would be an unrealistic stretch to conclude the father or the family wanted to keep the documents away from him for no apparent reason, knowing (on both the complainant’s and the accused’s evidence), the family seemed to have accepted the accused up until then . [ 280 ] Does any or all this circumstantial evidence give rise to the only reasonable possible inference of the accused’s guilt?

In my view, it does n

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